Summary:
Claimant sought 500 weeks of permanent partial disability benefits with
respect to a 1981 back injury. Orthopedic surgeon, who was treating physician,
testified that claimant reached MMI following work injury. His testimony,
along with testimony from other physicians, indicated that claimant’s
back condition would not have progressed to its present disabling point
without additional injuries or aggravations for which the insurer was
not liable.

The trial in this matter was
held on May 31, 1995, in Butte, Montana. Petitioner, Brett Briney (claimant),
was present and represented by Mr. Andrew D. Huppert. Respondent, Pacific
Employers Insurance Company (Pacific), was represented by Mr. Brendon
J. Rohan. The claimant testified on his own behalf. William Goodrich,
Margot Hart and Mike McNabb also testified. The depositions of claimant,
Dr. Charles Canty, Dr. Michael Lahey, Dr. Gary Cooney, Dr. Patrick Robins
and William Goodrich were submitted for the Court's consideration. Exhibits
1 through 16 and 18 through 20 were admitted by stipulation of the parties.
Exhibit 17 was admitted over claimant's objection.

A trial transcript has not
been prepared. Unless otherwise noted, the facts found herein are based
on trial testimony.

Issues: Claimant is
seeking 500 weeks of permanent partial disability benefits with respect
to a 1981 back injury. He also seeks attorney's fees and a 20% penalty.
Pacific contends that if claimant is awarded permanent partial disability
benefits, it is entitled to an offset for the occupational disease benefits
it has paid to claimant since October 11, 1993.

Having considered the Pretrial
Order, the testimony presented at trial, the demeanor of the witnesses,
the exhibits, the deposition testimony, and the parties' arguments, the
Court makes the following:

FINDINGS OF FACT

1. At the time of trial claimant
was 35 years old. He is a high school graduate.

2. Claimant worked for Stauffer
Chemical Company (Stauffer(1)) from 1977
until June 1993. He was initially employed in temporary positions cleaning
furnaces but became a permanent employee in 1978. He has held various
positions with the company, all of which involve heavy manual labor.

3. On May 24, 1981, claimant
injured his back at work when he was "rodding" slag in a precipitator
with an iron bar. He heard a pop in his back and experienced immediate
low-back pain.

4. At the time of claimant's
1981 injury, Stauffer was insured by Pacific Employers Insurance Company.
Pacific accepted liability for the claim and paid claimant temporary total
disability and medical benefits.

5. Between 1981 and 1992 claimant
suffered a number of injuries or incidents which caused acute episodes
of low-back pain and in some instances pain radiating into his legs.

a. In September 1982 claimant
experienced back pain while hauling wood (Ex. 1 at 17) but did not remember
any specifics of the incident.

b. On January 20, 1983,
while working at Stauffer, claimant experienced sharp pain in the center
of his back and in his buttocks when pulling on a 36" pipe wrench.

c. On January 25, 1983,
claimant experienced acute pain in his back and buttocks while using
a hammer and stick to pound in packing around electrodes. The incident
occurred at work.

d. On March 14, 1984, claimant
experienced sharp pain in his lower back when he tried to get out of
the way of a steam hose. The incident occurred at work.

e. On January 28, 1985,
while using a jack hammer to break off slag at work, claimant again
experienced back pain.

f. On January 8, 1989, claimant
rolled a snowmobile. While trying to pick it up he felt acute back pain.

g. On July 1, 1990, claimant
fell from a ladder and felt back pain when he landed. (Ex. 1 at 66-68.)

h. On September 9, 1991,
claimant was involved in an accident with a three-wheeler vehicle. He
initially separated his shoulder but shortly after the accident he also
began experiencing back pain. Dr. Canty, who treated him for the accident,
recorded on September 9, 1991, that he was suffering back pain. (Canty
Dep. at 19; Dep. Ex. 1.)

i. Dr. Patrick R. Robins'
office notes refer to yet another injury occurring March 3, 1993. (Robins
Dep. at 10 and Dep. Ex. 1.) The Court has not been provided with any
details regarding that injury.

6. Claimant also suffered a
lumbar sprain on March 8, 1981, when lifting tires off a truck at home.
(Ex. 13 at 1.) The history of this injury was not presented to the physicians
who testified in this case. Thus, they did not have an opportunity to
address what, if any, significance the injury has with respect to the
claimant's current condition. Lacking their assessments of the injury,
I have given this prior injury no significance or weight in reaching my
decision.

7. Following each of the incidents
listed in paragraph 5, claimant was treated by a physician or chiropractor.
Dr. Charles Canty, an orthopedic surgeon, treated claimant for his May
24, 1981 and September 9, 1991 injuries. (Canty Dep. at 8, 18-20.) Dr.
R. J. Best treated claimant following the September 1982 and January 25,
1983 incidents. (Ex. 1 at 12, 17.) Dr. Douglas Smithson, a chiropractor,
treated claimant following the January 20, 1983 incident. (Id. at
11, 13.) Dr. James Paulmann, a chiropractor, treated claimant following
the January 28, 1985 incident. (Id. at 229.) Dr. John J. Sands,
a chiropractor, treated him following the January 8, 1989 snowmobile accident.
(Id. at 219.) Emergency room physicians at St. James Community
Hospital treated him following his July 1, 1990 fall from a ladder. (Id.
at 66-68.) Finally, Dr. Robins saw him following the March 3, 1993
incident. (Id. at 208.) Claimant was also treated for a time
in 1993 and 1994 by Dr. Bruce Knutsen. (Id. at 56-61.)

8. Claimant lost work following
his injuries of May 24, 1981, September 1982, January 20, 1983, January
25, 1983, and January 28, 1985. (Ex. 1 at 10, 12, 223-224, 229 and Ex.
14.)

9. Dr. Canty testified concerning
his treatment of claimant following the May 24, 1981 injury. He first
examined claimant on May 29, 1981, and discharged claimant from his care
on June 19, 1981. (Canty Dep. at 8, 14.) He diagnosed a probable herniated
nucleus pulposus or a disk extrusion at the left lumbosacral level. (Id.
at 9.) That diagnosis was based on a positive response to straight raising
of the left leg test. (Id.) By June 19, 1981, claimant had improved
sufficiently for Dr. Canty to release him to work. (Id. at 11.)
In Dr. Canty's opinion, claimant's herniated disk had returned to its
normal anatomical configuration and claimant could work without restrictions.
According to Dr. Canty, claimant suffered no permanent impairment. (Id.
at 13.)

10. Claimant underwent an MRI
of his low back on February 19, 1992. (Ex. 1. at 39.) At the
L4-5 level, the MRI disclosed a "large extruded disc that is central,
slightly to the left, but it extends to the right into the lateral portion
of the spinal canal." (Id.) It also identified a "large lateral
herniated disc that is entirely lateral on the left" at the L5-S1 interspace.
(Id.) Finally, it disclosed degenerative disk changes at the
L4-5 and L5-S1 levels. (Id.)

11. Following the MRI, claimant
was treated by Dr. Patrick Robins, who is an orthopedic surgeon. Dr. Robins
first examined claimant on March 2, 1992, at which time claimant was having
mechanical low-back pain but no significant symptoms of sciatica. (Ex.
1 at 207; Robins Dep. at 10.) Dr. Robins saw claimant again on March 17,
1992, and noted that claimant had reinjured his low back on March 3, 1992.
(Robins Dep. at 10.) Following the March 3, 1992 injury, claimant began
experiencing sciatica in the right lower extremity. (Id.) During
a follow-up visit of April 13, 1992, claimant told Dr. Robins that he
was improving. (Id. at 11.) Meanwhile, claimant took off from
work and began physical therapy.

12. Dr. Robins saw claimant
for the last time on May 11, 1992. Claimant was "doing very well" and
the doctor released him to return to work. (Id. at 11-12.) Claimant,
who had been off work approximately three months, returned to his job
at Stauffer.

13. In the summer of 1993,
claimant experienced difficulty with a pilonidal sinus. (Ex. 1 at 46.)
On July 16, 1993, Dr. P.G. Poore surgically excised the sinus. (Id.
at 48.)

14. During his convalescence
from surgery, claimant was unable to physically exercise and he experienced
a worsening of his low-back pain.

15. Due to his low-back condition
the claimant was unable to return to his job at Stauffer. On March 11,
1994, Dr. Knutsen determined that claimant was 100% disabled from his
regular work at Stauffer. (Id. at 59.) As previously mentioned,
Dr. Knutsen treated claimant during 1993 and 1994. Of some significance,
he also acted as the plant physician for Stauffer.

16. Stauffer's insurer in 1993
accepted liability for claimant's back condition as an occupational disease.
It commenced paying temporary total disability benefits on October 11,
1993, and those benefits were still being paid at the time of trial.

17. Claimant disagrees with
the insurer's decision to treat his condition as an occupational disease.
He contends that his current disability was caused by the 1981 accident
and that he is entitled to 500 weeks of permanent partial disability benefits
on account of that accident.

18. The latest medical evaluation
of claimant appears to be an impairment evaluation done by Dr. Robins
on February 21, 1995. At the time of the evaluation, the doctor characterized
claimant's condition as "mechanical type of low back pain with bilateral
sciatica, right greater than left." (Robins Dep. at 16.) He rated claimant's
impairment due to his low-back condition at 10% of the whole man. (Id.)
He agreed that claimant cannot return to work doing manual labor. (Id.
at 16.) He also concluded that claimant was at maximum medical improvement.
(Id.)

19. Drs. Canty, Robins, Cooney
and Lahey testified by deposition. Much of their testimony was focused
on the relationship of the 1981 accident to claimant's current condition
and disability. Their testimony underscores the importance of both the
form and substance of the questions put to them and the necessity that
their testimony specifically address the statutory prerequisites to compensation.
At first glance, many of the doctors' answers support a conclusion that
claimant's current condition and disability was caused by the 1981 injury.
However, a careful analysis of their full testimony shows that while the
1981 injury may well have contributed to claimant's ultimate
condition, it is not solely responsible for it. Rather, his ultimate condition
is due to the cumulative effect of the multiple injuries or aggravations
he has suffered over the years. The evidence is unpersuasive that absent
the additional injuries or aggravations, the claimant's back condition
would have progressed to its present point or that he would now be unable
to work.

a. Dr. Canty, who treated
claimant with respect to his 1981 industrial accident, found claimant
to be at maximum medical healing and without permanent impairment by
June 22, 1981. (Canty Dep. at 11-13, 39.) He testified that by June
22, 1981, the claimant's disk had returned to its normal anatomical
position and was no longer herniated. (Id. at 12.) During his
deposition Dr. Canty was provided with information concerning claimant's
subsequent back incidents. He agreed that claimant's 1992 symptoms were
similar to his 1981 symptoms; that the 1981 injury made claimant more
susceptible to reinjury; that claimant's back problems date back to
the 1981 injury; that the 1981 injury contributed to claimant's condition;
that the 1981 injury was the most significant of claimant's injuries;
and that the 1992 MRI findings were "related" to claimant's 1981 injury.
(Id. at 22-24, 27, 37-40.) However, when questioned further,
Dr. Canty testified that absent the subsequent injuries the
claimant would have been able to continue working without physical restriction.
(Id. at 40.) He opined that claimant's back condition was the
cumulative result of repetitive injuries, each of which increased the
severity of his disk problem. (Id. at 40-43.) He pointed out
that most individuals suffering an injury, such as the one claimant
suffered in 1981, continue to be able to perform heavy labor:

Fortunately, the greater
portion of the working population goes back to work after a similar
insult to Brett's, they will have intermittent difficulties, but they
fortunately are able to complete a full lifetime of, say, heavy labor.
If that were not the case, our labor force would probably be ravaged
and nonfunctioning.

(Id. at 44.) The
doctor disagreed that claimant's 1981 injury by itself necessarily
diminished his ability to perform heavy labor. (Id. at 45.)

b. Dr. Robins was questioned
concerning the relationship between the 1981 injury and claimant's back
condition. Claimant's counsel asked him:

Doctor, based on the history
I've just given you and based on your own examination of Brett Briney
and your professional expertise as an orthopedic specialist, do you
have an opinion with a reasonable degree of medical certainty whether
Brett Briney's current low back symptoms are attributable to his May
24, 1981 injury?

(Robins Dep. at 22.)

He responded:

From the history you gave
and from the history that I had previously obtained from Mr. Briney,
I believe that his current symptoms are likely attributable to the
1981 injury.

(Id. at 22.)

But as with similar opinions
of the other physicians, this question and answer did not tell the full
story. Dr. Robins conceded it was possible that without a second injury
in 1983 claimant might have been able to continue to work full time
without restriction. Concerning the cumulative effect of the succession
of injuries claimant suffered, Dr. Robins testified as follows:

Q: Does
his current condition also relate directly to the incident in January
of 1983?

A: Possibly.

Q: How
do you make the distinction between '81 and '83 as it only being possible
in '83 where it's probable in "81?

A: Well,
to me it's more probable that the initial incident of 1981
set the stage for a weakening in his lower back that was aggravated
by conditions subsequent to that time.

Q: Okay.
So would you say that each successive injury following the May 24,
1981 injury contributed to the current physical condition of Mr. Briney?

A: Quite
possibly, yes.

Q:And
would it be your opinion that each injury increased the severity of
the back problems that Mr. Briney is now complaining of?

A: I'm sure they
had a detrimental effect on his condition, yes.

Q: And
would it be your opinion that each of these injuries resulted in some
permanent aggravation to his back problem?

A: That's
quite possible also, yes.

Q: So
that the successiveness of the injuries, one after another over the
years, is what actually has led to his current disability today?

A:Yes.
They are all cumulative. [Emphasis added.]

(Robins Dep. 42-43.)

Ultimately, Dr. Robins confirmed
that each of claimant's successive injuries decreased his ability to
engage in physical labor:

Q: Did
each of the successive injuries that Mr. Briney suffered also decrease
his ability to engage in heavy physical labor?

A: I would
have to say yes to that, also.

(Id. at 48.)

He agreed that there is
no scientific way to determine whether claimant's herniated disk condition,
as disclosed in 1992, was caused by the 1981 injury. (Id. at
45.) Finally, he felt that the maximum medical improvement opinion Dr.
Canty rendered in June 1981 was somewhat premature but he did not
testify that claimant did not reach MMI prior to his 1983 injury. (Id.
at 30-32.)

c. Dr. Cooney examined claimant
on January 13, 1994. (Cooney Dep. at 7.) He testified that the 1981
injury was the "most significant insult" among claimant's various injuries
(Cooney Dep. at 63), although he also observed that the 1985 injury
was a "fairly significant injury (id. at 38). He speculated
that had an MRI been taken in 1981 it would have disclosed more severe
herniation than that disclosed by the 1992 MRI. (Id. at 62.)
Concerning the 1981 injury, Dr. Cooney did not entirely agree with Dr.
Canty's opinion that claimant's disk returned to its normal anatomical
position shortly after the injury, but did confirm that it receded so
that it was no longer irritating the nerve roots. (Id. at 34-35.)
He did not disagree with Dr. Canty's opinions that claimant reached
MMI with no residual impairment, or with Dr. Canty's observation that
absent the later injuries claimant would probably have been able to
continue to work without restriction. (Id. at 35-36.) Dr. Cooney
could not state within reasonable medical probability that the subsequent
injuries contributed to claimant's current condition. (Id. at
49-50, 63-64.) On the other hand, the doctor could not specifically
relate claimant's current condition to his 1981 injury other than to
say that it reduced his ability to perform physical labor because "it
would likely be aggravated by continued physical labor." (Id.
at 54.) He was asked whether he could "pick out one specific accident
or incident and say to a reasonable degree of medical probability that
that's what caused Mr. Briney's inability to return to work after October
of 1993?" Dr. Cooney replied, "No, I don't think you can refer
to any specific injury as the cause that he was unable to return to
work in September of '93." (Id. at 49; emphasis added.)
I also note that at the time he originally examined claimant it was
Dr. Cooney's "opinion that these [claimant's] symptoms were likely related
to previous traumatic events which had occurred over
the past 10 to 12 years which he [claimant] described to me in my evaluation."
(Id. at 16; emphasis added.)

d. Dr. Michael Lahey is
an orthopedic surgeon who specializes in spine problems. (Lahey Dep.
at 5.) He examined claimant on March 4, 1994. (Id. at 7.) He
confirmed that the various incidents over the years which precipitated
claimant's acute back pain were in fact injuries. (Id. at 43-44.)
Even with claimant's medical history, Dr. Lahey was unable to determine
whether there was any relationship between claimant's current
condition and the 1981 injury. (Id. at 22.) He was also unable
to attribute claimant's inability to return to heavy labor to any specific
injury. (Id. at 25.) He did not disagree with Dr. Canty's opinion
that absent the additional injuries claimant probably could have continued
working after his 1981 injury (id. at 17) and testified:

A. Okay. There is a reasonable
consensus among orthopedic surgeons that deal with spinal issues that
repetitive bending, heavy lifting, vibration exposure, has some potential
for increasing degenerative changes in the disks and in the spine.

So history of continued
activities along those lines and a history of repetitive episodes
of back pain and with the final x-rays and MR scan indicating degenerative
changes, it is possible that his work may have contributed to some
degree to the degenerative changes that we were seeing and the symptoms
that I was asked to address when I saw him in March of 1994.

(Lahey Dep. at 28-29.)

He did acknowledge that
it is "possible" that claimant's current condition is "related" to the
1981 injury. (Id. at 34.)

20. Dr. Canty's determination
that claimant reached maximum medical improvement within weeks after his
1981 injury is persuasive. He was the treating physician and in the best
position to make that determination. The determination was not contradicted,
although Dr. Robins felt it was rendered prematurely. It is supported
by the facts that claimant's condition improved dramatically and rapidly
and that he was able to continue working for more than a year until another
incident precipitated renewed pain.

21. Claimant testified at trial
that he has not been pain free since his 1981 injury. I did not find his
testimony credible and the medical records do not reflect a history of
continual pain. Rather those records reflect intermittent pain. (Ex. 1
at 7, 20, 177, 190.)

22. A preponderance of the
evidence in this case establishes that over a ten year period the claimant
suffered a series of injuries or aggravations which cumulatively caused
his current back condition.

CONCLUSIONS
OF LAW

1. The law in effect at the
time of the injury governs the claimant's entitlement to benefits. Buckman
v. Montana Deaconess Hospital, 224 Mont. 318, 730 P.2d 380 (1986).

2. At the time of his injury,
permanent partial disability was defined as follows:

(12) "Permanent partial
disability" means a condition resulting from injury as defined in this
chapter that results in the actual loss of earnings or earning capability
less than total that exists after the injured worker is as far restored
as the permanent character of the injuries will permit.

As noted in Finding of Fact
19, medical testimony concerning causation must be carefully analyzed.
Testimony that a condition is "related" to a current disability may or
may not establish causation depending on how the physician understood
the word "related." In this case all but one of the four testifying physicians
agreed that in a broad sense claimant's current low-back condition is
"related" to his 1981 injury. But their further testimony failed to establish
the sort of relationship which fulfills the proximate cause requirement.

None of the doctors who testified
in this case attributed claimant's current condition solely to his 1981
accident. None could testify on a more probable-than-not basis that claimant
would be disabled irrespective of the later injuries or incidents. Rather,
their testimony affirmatively established that the subsequent incidents
contributed to his disability.

Dr. Canty, who treated claimant
in 1981, and was in the best position to assess his injury and recovery,
testified that claimant reached maximum healing without any permanent
impairment and was able to return to work in June 1981 without restrictions.
While he opined that claimant's current condition is related to the 1981
injury, he did so on the basis that (1) claimant's current symptoms are
"similar" to his 1981 symptoms, and (2) the 1981 injury increased claimant's
susceptibility to additional injuries. He testified that claimant's back
condition is the cumulative result of claimant's many injuries, each of
which increased the severity of his disk disease. In his opinion, absent
the post-1981 injuries, the claimant could have continued working without
restriction.

Dr. Robins initially weighed
in with an opinion that claimant's current symptoms "are likely attributable
to the 1981 injury." (Robins Dep. at 22.) As did Dr. Canty, he also felt
that "the initial incident of 1981 set the stage for a weakening in his
lower back that was aggravated by conditions subsequent to that time."
(Id. at 42.) Upon cross-examination, it became clear that he
too considered claimant's condition to be the cumulative result
of claimant's successive injuries. (Id. at 43.) He opined that
each of claimant's injuries decreased his ability to engage in
physical labor. (Id. at 48.) It is clear from his testimony that
while Dr. Robins felt that the 1981 injury played a primary role in claimant's
ultimate condition, it was also his opinion that the subsequent injuries
permanently worsened and aggravated claimant's 1981 condition.

Dr. Cooney testified that
he was unable to specifically relate claimant's current condition to either
the 1981 injury or the subsequent injuries. Concerning the 1981 injury,
he could go no further than to say that it probably reduced his ability
to perform physical labor because "it would likely be aggravated by continued
physical labor." (Cooney Dep. at 54.) Ultimately, he said ". . .
I don't think you can refer to any specific injury as the cause that he
was unable to return to work." (Id. at 49.)

Finally, Dr. Lahey specifically
confirmed that the various incidents over the years were in fact injuries
but was unable to determine whether there is any relationship
between claimant's current condition and his 1981 injury. While also declining
to attribute claimant's condition to any specific injury, Dr. Lahey agreed
with Dr. Canty's opinion that absent the additional injuries, the claimant
probably could have continued working after his 1981 injury.

The doctors' testimony taken
as a whole establishes that the numerous incidents which triggered acute
back pain following claimant's 1981 injury were permanent aggravations
of claimant's low-back condition. None of the physicians opined that claimant's
condition would be disabling irrespective of the subsequent injuries.
Two physicians agreed that it would not. Drs. Canty and Robins testified
that claimant's subsequent injuries contributed to claimant's condition
and further impaired his ability to work. Dr. Cooney declined to relate
claimant's condition to any of the injuries. Dr. Lahey similarly did not
express an affirmative opinion, but indirectly confirmed the significance
of the subsequent injuries by first confirming that they were in fact
injuries, and by affirming that he did not disagree with Dr. Canty's opinion
that claimant in all probability could have continued working but for
the subsequent injuries.

Overall, the medical and other
evidence preponderates in favor of the conclusion, which I reach, that
claimant's current condition is attributable to a series of back injuries
or aggravations and not just to his 1981 injury. The evidence further
preponderates in favor of the conclusion that the incidents subsequent
to 1981 permanently aggravated his condition. Claimant reached MMI shortly
after the 1981 accident. He returned to work and worked uneventfully for
over a year before he experienced renewed pain precipitated by a specific
incident. Despite his testimony at trial, I am persuaded that the claimant
has not suffered continuous pain since 1981 but rather that his back pain
has been intermittent and chiefly associated with the various aggravations
he has suffered.

This case is distinguishable
from Walker, in which the Supreme Court held that there was insufficient
evidence to establish that flare-ups subsequent to claimant's initial
back injury were injuries within the meaning of the Workers' Compensation
Act. In that case, there was positive medical testimony that claimant's
condition was the result of a 1985 industrial accident. While claimant
had experienced subsequent episodes of back pain that may have been related
to certain incidents, the record did not indicate they were discrete injures
which permanently aggravated his condition. One treating physician indicated
in his record that a 1986 incident did not permanently aggravate claimant's
condition. In this case the claimant failed to establish by a preponderance
of evidence that his current condition was caused by his 1981 injury.
The best that can be said for his evidence is that the 1981 injury "set
the stage" for future aggravations. The claimant in this case reached
maximum healing long before the subsequent incidents and, unlike Walker,
there is medical evidence that the "incidents" in this
case were in fact injuries which caused permanent worsening of his condition.
Unlike Walker there is substantial, persuasive medical evidence
in this case which indicates that absent the subsequent injuries the claimant
could have continued working indefinitely despite the 1981 injury.

Claimant has not satisfied
his burden of proving that the 1981 injury was the proximate cause of
his current condition and disability.

4. Since he has failed to prove
that his 1981 industrial accident proximately caused his disability, the
claimant is not entitled to permanent partial disability benefits.

5. The claimant has not prevailed
and is not entitled to attorney fees, costs or a penalty.

JUDGMENT

1. The claimant is not entitled
to permanent partial disability benefits on account of his May 24, 1981
industrial accident.

2. The claimant is not entitled
to attorney fees, costs or a penalty.

3. This JUDGMENT is certified
as final for purposes of appeal pursuant to ARM 24.5.348.

4. Any party to this dispute
may have 20 days in which to request a rehearing from these Findings of
Fact, Conclusions of Law and Judgment.